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EXHIBIT (10.4)
DATA PROCESSING SERVICES AGREEMENT
THIS DATA PROCESSING SERVICES AGREEMENT is made as of this 5th day of
June 1996 (the "Agreement") by and between M&I Data Services, a division of the
Marshall & Ilsley Corporation, a Wisconsin corporation ("M&I") and Community
Central Bank, a Michigan corporation, together with its parent company
(collectively referred to as the "Customer").
RECITALS
WHEREAS, M&I provides data processing services to customers located
across the country; and
WHEREAS, M&I desires to provide data processing services to Customer,
and Customer desires to have M&I provide it with such services.
NOW, THEREFORE, in consideration of the recitals and for the good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. SERVICES. M&I shall provide Customer with the data processing
services requested by Customer utilizing the version of the banking system
software made available from time to time by M&I through the M&I Service Bureau
(the "Services"). The functionality of the software and a further description
of the Services is set forth in the User Manuals, copies of which will be
provided, or made available, to Customer. Customer shall purchase the data
processing services indicated on Exhibit A from M&I. Unless otherwise agreed
in writing between M&I and Customer, and subject to the other provisions of the
Agreement, M&I shall make the On-line Services available to Customer, subject
to normal downtime and maintenance, at times indicated on the M&I On-line
Availability Schedule, as modified from time to time.
2. FEES AND TAXES. Customer agrees to pay for the Services
received hereunder as follows:
a. Amount of Fees. Commencing on the Conversion Date
(as defined in Section 3) and on the first day of each month thereafter through
the end of the term of this Agreement, Customer shall pay M&I a minimum monthly
fee according to the special provisions contained in Exhibit B. Customer shall
also pay M&I an additional use fee each month where M&I charges for the
Services actually used by Customer during the applicable month are greater than
the Minimum Monthly Fee. M&I shall compute the Customer's actual usage charges
based on M&I's then-current standard published prices, and any amounts due M&I
in excess of the Minimum Monthly Fee shall be paid by Customer (the "Additional
Use Fee"). Customer also agrees to pay all communication costs,
telecommunication charges, printline charges and other output costs, start-up
fees, pass-through charges, out-of-pocket expenses, conversion expenses and
fees, workshop fees, training fees, and late fees or charges billed as
miscellaneous on Customer's invoice (the "Miscellaneous Fees"). The M&I
standard published prices as of the date of this Agreement are set forth on the
fee schedule attached as Exhibit C.
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b. Discount. When the charges for Customer's actual
usage of Services exceeds the Minimum Monthly Fee, Customer shall receive a
fifteen percent (15%) discount on Services (excluding MICARD, MICASH, EFT,
Trust, and Backroom and Item Processing Services) excluding communication
costs, telecommunication charges, printline charges and other output costs,
start-up fees, pass-through charges, out-of-pocket expenses, conversion
expenses and fees, workshop fees, training fees, late fees, or charges billed
as Miscellaneous on the Customer's invoice. The discount shall be in effect
for the term of the Agreement.
c. Additional Charges. In addition to the charges
described above or set forth in Exhibit C, Customer agrees to pay for any
manufacturers, sales, use, excise, personal property, or any other tax or
charge, or duty or assessment levied or assessed by any governmental authority
upon or as a result of the execution or performance of any service pursuant to
this Agreement or materials furnished with respect to the Agreement, except
those taxes based on M&I's net income.
d. Terms of Payment. Customer shall pay the Minimum
Monthly Fee on the first day of the month in which the Services are to be
performed, and shall pay the Additional Use Fee and any Miscellaneous Fees
within ten (10) days of the date such amounts are invoiced to Customer. Any
other amounts due hereunder shall be paid within thirty (30) days of invoice,
unless otherwise provided herein. Commencing six (6) months after the
Conversion Date, to effect the payment, Customer hereby authorizes M&I to
initiate debit entries from and, if necessary, initiate credit entries and
adjustments to Customer's account at the depository designated in the ACH
Authorization Agreement. Debit entries for the Minimum Monthly Fee will be
made on the first day of each month for which Services will be rendered under
the Agreement. In the event that a payment day is a nonbusiness day, entries
will be made on the first preceding business day. Customer shall authorize, on
the attached ACH Authorization Agreement, debits from and credits to its
account for payment for Services received under the Agreement. The Customer
shall also pay any collection fees and reasonable attorneys' fees incurred by
M&I in collecting payment of the charges and any other amounts for which
Customer is liable under the terms and conditions of this Agreement.
e. Modification of Terms and Pricing. If Customer is in
default and M&I elects to continue to perform the Services, or if the
Customer's tangible capital or reserve requirements computed in accordance with
applicable federal regulations for itself or any of its affiliates receiving
Services hereunder are less than the required regulatory minimums, Customer
agrees to pay M&I all unamortized conversion expenses in advance of M&I
performing any additional Services. In addition, Customer agrees that all
charges for Services shall be computed using one hundred ten percent (110%) of
M&I's then-current standard published prices, paid in advance as determined by
M&I. At M&I's option, such Services shall be provided on a month-to-month
basis.
3. TERM.
a. Initial Term. This Agreement shall be effective upon
execution by both parties, and both parties will promptly undertake the
conversion activities necessary to process Customer's data. M&I currently
anticipates, subject to Customer's timely and satisfactory completion of its
responsibilities described in the M&I Conversion Manual and in the Conversion
Schedule to be established by M&I,
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and agreed to by Customer, that all conversion activities will be completed on
August 30, 1996 (the "Conversion Date"). The term of this Agreement shall
continue for a period of ninety-six (96) months from the Conversion Date.
b. Renewal Obligations. During any renewal term, or for
any Services provided after the end of the initial term, whether or not the
Agreement is renewed, Customer agrees that the terms of this Agreement shall
continue to apply, except that all charges for Services shall be computed using
one hundred ten percent (110%) of M&I's then-current standard published prices
paid in advance as determined by M&I. At M&I's option, such Services shall be
provided by M&I on a month-to-month basis.
4. AFFILIATES. All processing for Customer and Customer's
subsidiaries and affiliates which M&I does shall be included as part of the
Services provided under this Agreement and shall be done in accordance with the
terms and conditions of this Agreement. Customer agrees that it is responsible
for assuring compliance with the Agreement by its affiliates and subsidiaries.
Customer agrees to be responsible for the submission of its affiliates' data to
M&I for processing and for the transmission to Customer's affiliates of such
data processed by and received from M&I. Customer agrees to pay any and all
fees owed under this Agreement for Services hereunder.
5. CONFIDENTIALITY AND OWNERSHIP. Both parties will, to the
extent and in accordance with their policies used to protect their own
information of similar importance, use their best efforts to refrain from and
prevent the use of or disclosure of any confidential information of the other
party, disclosed or obtained by such party while performing its obligations
under this Agreement, except when such use or disclosure is for the purpose of
providing the Services. Neither party will have an obligation of
confidentiality with regard to any information insofar as the same: (1) was
known to such party prior to disclosure; (2) is or becomes publicly available
other than as a result of a breach of this Agreement; or (3) is disclosed to
such party by a third party not subject to an obligation of confidentiality.
Nor shall the obligation of confidentiality occur where disclosure is made
pursuant to: (1) any law of the United States or any state thereof; (2) the
order of any court or governmental agency; or (3) the rules and regulations of
any governmental agency.
Customer may reproduce and distribute any or all M&I's
documentation, including User Manuals, solely for its own internal use.
Customer recognizes, however, that such documentation may be copyrighted,
trademarked, patented, or otherwise protected by M&I. Customer will not
undertake to reproduce for distribution or distribute such documentation to any
other third party. Any modifications made to such documentation by Customer
for the purpose of customization are acknowledged to be solely at the risk of
Customer, and M&I shall not be liable to Customer for any inaccuracies arising
therefrom. The distribution of modified documentation is subject to the same
restrictions and shall further contain an acknowledgement of M&I's copyright
and other protected proprietary interests in such documentation.
6. PROGRAMMING. M&I reserves the right to determine the
programming (whether hardware or software) utilized with the equipment used in
fulfilling its duties under this Agreement. All programs (including ideas and
know-how and concepts) developed by M&I are and remain its sole property.
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7. EQUIPMENT. Customer shall obtain and maintain at its own
expense such data processing and communications equipment as may be necessary
or appropriate to facilitate the proper use and receipt of the Services.
Customer shall pay all installation, monthly, and other charges relating to the
installation and use of communications lines in connection with the Services.
M&I shall not be responsible for the reliability monitoring or continued
availability of the communications lines used by Customer in accessing the
Services.
8. SUPPLIES. Customer shall pay for all supplies used in
connection with the Services. All forms, supplies, or materials used in
processing Customer's items and input data shall meet M&I's specifications.
9. SYSTEMS MODIFICATION; AMENDMENT OF SERVICES. M&I may modify,
amend, enhance, update, or provide the appropriate replacement for any of the
Services, the software used to provide the Services, or any element of its
systems at any time to: (a) improve the Services or (b) facilitate the
continued economic provisions of the Service. M&I may, at any time, withdraw
any of the Services upon providing one hundred eighty (180) days' prior written
notice to Customer. M&I may also terminate any of the Services immediately
upon any regulatory, legislative, or judicial determination that providing such
Services is inconsistent with applicable law or regulation or upon imposition
by any such authority of restrictions or conditions which would detract from
the economic or other benefits to M&I or Customer to any element of the
Services.
10. DISASTER RECOVERY. M&I maintains, and shall continue to
maintain throughout the term of this Agreement, off-site disaster recovery
capabilities which permit M&I to recover from a disaster and continue providing
Services to Customers within a commercially reasonable period. An executive
summary of the current disaster recovery plan, which may change from time to
time, is available upon request from M&I at no charge. M&I shall test the
operation and effectiveness of its disaster recovery plan at least annually.
M&I maintains, and shall continue to maintain throughout the term of this
Agreement, a backup power supply system to guard against electrical outages.
11. EVENTS OF DEFAULT. It shall be an Event of Default on the
part of the Customer if: (a) Customer is insolvent, or a receiver or
conservator shall be appointed with respect to the Customer; or (b) Customer
shall fail to pay any sum due M&I within the prescribed time; or (c) if the
Customer shall fail to perform any of its other covenants or obligations under
this Agreement. It shall be an Event of Default on the part of M&I if M&I
shall fail to perform any of its obligations under this Agreement where the
failure of M&I to perform has a material adverse impact on Customer and is
material to the provision of the Services. The defaulting party shall have ten
(10) days from the date of receipt of written notice from the nondefaulting
party of nonpayment or nonperformance to cure such an Event of Default, before
the nondefaulting party may exercise any remedies it may have as a result of
the Event of Default.
12. REMEDIES UPON DEFAULT; LIMITATION OF LIABILITIES. If an Event
of Default occurs on the part of the Customer, and is not cured within the ten
(10) day period prescribed in Section 11, M&I may (a) terminate this Agreement;
(b) terminate access to its central processing unit by the Customer; and (c)
declare all amounts payable under this Agreement to be immediately due and
payable and file
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suit for or otherwise obtain payment from the Customer of any fees or other
sums due it pursuant to this Agreement, plus any actual damages to its
equipment or systems caused by the Customer's actions, failures to act,
equipment, systems, or communication facilities, plus any profits lost because
of the Customer's default. If an Event of Default occurs on the part of M&I,
and is not cured within the ten (10) day period prescribed in Section 11, the
Customer may only: (a) terminate this Agreement and (b) file suit or otherwise
obtain payment of an aggregate amount of fees paid by the Customer to M&I
hereunder during the three (3) months immediately preceding the Event of
Default. Either party may also seek equitable remedies, including, without
limitation, specific performance and injunctive relief, for a breach of Section
5 of this Agreement. M&I and the Customer agree that these damage provisions
are reasonable in light of all present predictable circumstances (including
expectable actual damages in that the fees to be charged by M&I hereunder do
not include amounts sufficient to insure against greater claims). M&I and
Customer expressly waive all claims for additional, incidental, consequential,
compensatory, or punitive damages and agree that the remedies set forth in this
Agreement shall be the sole and exclusive remedies of the parties. No lawsuit
or other action may be brought by either party hereto or on any claim or
controversy based upon or arising in any way out of this Agreement after one
(1) year from the date of the occurrence allegedly giving rise to the action,
except for nonpayment of sums due to M&I by Customer. M&I agrees that except
in the case of an Event of Default relating to a breach by the Customer of its
confidentiality obligations under Section 5 of this Agreement, M&I will not
exercise its remedy to terminate Customer's access to the M&I central
processing unit so long as: (a) Customer is current in the payment of all
amounts due M&I as reflected on M&I's last invoice to Customer; and (b) only
exercise such remedy after providing Customer with sixty (60) days' prior
written notice.
13. TERMINATION.
a. End of Initial Term. This Agreement shall
automatically be extended at the end of the initial ninety-six (96) month term
for an additional twelve (12) month renewal term, unless the Customer gives M&I
at least one hundred eighty (180) days' prior written notice of its intent to
terminate, which notice may be given during the initial term of the Agreement.
b. Renewal Term. During the renewal term, this
Agreement shall be automatically extended for an additional one (1) month on
each monthly anniversary date so that the term shall always be not less than
one (1) month less than twelve (12) months, unless either party gives written
notice to the other party of intent to terminate, in which event the automatic
monthly renewals will end and the Agreement will terminate at the end of the
unexpired portion of the term in existence on the date notice to terminate is
given.
c. Termination Upon Default. This Agreement may also
terminate upon an Event of Default and failure to cure beyond applicable cure
periods at the option of the nondefaulting party as set forth in Section 12
hereof.
d. Termination by Customer. Customer may terminate this
Agreement at any time, and without cause, by giving M&I at least one hundred
eighty (180) days' prior written notice and paying M&I the then-applicable
buyout amount set forth in Section 21.
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14. REGULATORY ASSURANCES. M&I and Customer acknowledge and agree
that the performance of these Services will be subject to regulation and
examination by Customer's regulatory agencies to the same extent as if such
Services were being performed by Customer. Upon request, M&I agrees to provide
any appropriate assurances to such agency and agrees to subject itself to any
required examination or regulation. Customer agrees to reimburse M&I for
reasonable costs actually incurred due to any such examination or regulation
that is performed solely for the purpose of examining data processing services
used by Customer.
a. Notice Requirements. The Customer shall be
responsible for complying with all regulatory notice provisions to any
applicable governmental agency, which shall include providing timely and
adequate notice to the Chief Examiner of the Federal Home Loan Bank Board, the
Office of Thrift Supervision, the Office of the Comptroller of the Currency,
The Federal Deposit Insurance Corporation, the Federal Reserve Board, or their
successors, as applicable (collectively, the "Federal Agency"), as of the
effective date of Services under this Agreement, identifying those records to
which this Agreement shall apply and the location at which such Services are to
be performed.
b. Examination of Records. The parties agree that the
records maintained and produced under this Agreement shall, at all times, be
available for examination and audit by governmental agencies having
jurisdiction over the Customer's business, including (without limitation) the
Federal Agency. The Director of Examinations of the Federal Agency or his
designated representative shall have the right to ask for and to receive
directly from M&I any reports, summaries, or information contained in or
derived from data in the possession of M&I related to the Customer. M&I shall
notify Customer as soon as possible of any formal request by an authorized
governmental agency to examine Customer's records maintained by M&I, if M&I is
permitted to make such a disclosure to Customer under applicable law or
regulations. Customer agrees that M&I is authorized to provide all such
described records when formally required to do so by this authorized
governmental agency.
c. Fidelity Bonds. Throughout the term of the
Agreement, M&I shall maintain fidelity bond coverage for M&I and its employees.
d. Notice of Changes. Customer shall give to the
Director of Examinations of the Federal Agency at least thirty (30) days'
notice of the termination of this Agreement or of any material changes in the
Services to be provided hereunder.
e. Insurance. Throughout the term of this Agreement,
M&I shall maintain insurance coverage (or shall be self-insured) for losses
from fire, disaster, and other causes contributing to interruption of the
Services. The proceeds of such insurance shall be payable to M&I. Nothing in
this Agreement shall be construed as to permit Customer to receive any of such
proceeds, or to be named as an additional loss payee under any insurance
policy.
f. Financial Information. Customer agrees to provide
M&I with a copy of the call report filed with the Federal Agency simultaneously
with its filing with the Federal Agency, and to provide such additional
financial information as to its creditors or others as M&I may reasonably
request.
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15. TRANSPORTATION AND/OR TRANSMISSION OF DATA. The
responsibility and expense for transportation and/or transmission of and risk
of loss of data and media to and from M&I's datacenters shall be borne by
Customer. M&I will notify Customer of the time by which Customer's data and
media must be delivered to M&I for processing for M&I to provide Customer's
processed data within the time period indicated by M&I.
16. RESPONSIBILITY.
a. General. M&I agrees to perform the Services in a
commercially reasonable manner, which is similar to the services provided to
other M&I customers, and no other or higher degree of care. Except as
otherwise described herein, M&I assumes no other obligation as to performance
or quality of the Services provided, all other risks of error being expressly
assumed by Customer. M&I shall not be responsible for loss or damage due to
delays in processing or in the delivery of processed data as a result of any of
the causes excused by Section 19 hereof. M&I WILL IN NO EVENT BE LIABLE FOR
ANY INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES INCURRED BY CUSTOMER
INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR BUSINESS OPERATION LOSS,
REGARDLESS OF WHETHER M&I WAS ADVISED OF THE POSSIBLE OCCURRENCE OF SUCH
DAMAGES.
b. Reliance on Data Supplied. M&I will process items
and data and perform those Services described in this Agreement on the basis of
information furnished by Customer. M&I shall be entitled to rely upon any such
data, information, or instructions as provided by Customer. If any error
results from incorrect input supplied by Customer, Customer shall be
responsible for discovering and reporting such error and supplying the data
necessary to correct such error to M&I for processing at the earliest possible
time. Customer will indemnify and hold M&I harmless from any cost, claim,
damage, or liability (including attorneys' fees) whatsoever arising out of such
data, information or instructions, or any inaccuracy or inadequacy therein.
Customer assumes all risk of loss, delay, and miscommunication in the
transportation or transmission by electronic means of data and information from
any terminal or remote unit unless the same is caused by or attributable to any
act or omission on M&I's part, which act or omission does not meet the standard
of care in Section 16(a), or was caused by or attributable to any gross
negligence or willful failure on M&I's part to comply with its obligations
under this Agreement.
c. Data Backup. Customer shall maintain adequate
records including microfilm images of items being transported to M&I for at
least ten (10) business days' backup on magnetic tape or other electronic media
where transactions are being transmitted to M&I, from which reconstruction of
lost or damaged items or data can be made. Customer assumes all responsibility
and liability for any loss or damage resulting from failure to maintain such
records.
d. Audit. M&I shall cause a third-party review of its
data processing systems and Services to be conducted annually by its
independent auditors. M&I shall provide Customer one copy of the report
resulting from such review.
e. Regulatory Compliance. Customer is responsible for
determining that the Services performed in its behalf, any forms which are used
with its customers, and all records it retains comply with all applicable laws.
Should
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Customer need information from the Services M&I provides in order to comply
with applicable federal or state laws and regulations, Customer's sole remedy,
and M&I's sole obligation shall be for M&I to provide the ability to process
the information requested from the Customer as promptly as is commercially
practicable.
f. Balancing and Controls. On a daily basis, Customer
shall review all input and output, controls, reports, and documentation, to
ensure the integrity of data processed by M&I. In addition, Customer shall, on
a daily basis, check exception reports to verify that all file maintenance
entries and nondollar transactions were correctly entered. Customer is
responsible for initiating timely remedial action to correct any improperly
processed data which these reviews would disclose.
g. Service Deficiencies. If Customer is aware that a
defect exists in a Service, Customer shall be responsible for making whatever
appropriate adjustments may thereafter be necessary until M&I corrects the
defect and, if requested by Customer, M&I will, at M&I's expense, assist
Customer in making such corrections through the most cost-effective means,
whether manual, by system reruns, or program modifications. M&I will, where
reasonable, make every effort to correct any known material defect as soon as
commercially reasonable at M&I's expense.
17. OWNERSHIP OF DATA. Customer is the owner of all of its data
supplied by Customer to M&I for processing hereunder. Customer acknowledges
that it has no rights in any of the software, systems documentation,
guidelines, procedures, and similar related materials or any modifications
thereof except with respect to M&I's use of the same during the term of this
Agreement to process data. Upon termination of this Agreement, M&I shall
provide Customer with all copies of Customer's data in a format that is being
used by M&I at that time for processing such data. Prior to the release of the
Customer's data: (a) all amounts owed under this Agreement by Customer to M&I
shall be current and paid in full, and (b) Customer shall pay M&I its
"Estimated Deconversion Expenses" as described below. Customer agrees to pay
M&I for M&I's work in providing such data at M&I's rates then in effect for
computer and personnel time, supplies, and other items as required, and
Customer further agrees to pay M&I for any and all charges associated with the
deconversion of Customer's data based on M&I's then-current charges for such
Services. M&I shall make a good faith estimate of all of such costs, expenses,
and charges which shall be paid by Customer in advance (the "Estimated
Deconversion Expenses"). The difference, if any, between the actual expenses
and the prepaid Estimated Deconversion Expenses shall be promptly paid after
determination.
18. WARRANTIES. M&I represents and warrants that:
a. Capability of Computer Systems and Software. M&I's
computer systems (hardware and software) are capable of performing the Services
in accordance with the provisions of this Agreement. The software used to
provide the Services will operate substantially in accordance with the
specifications and documentation for the software as modified from time to time
to incorporate enhancements or modifications of the software to provide the
Services.
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b. Quality of Service. The reports and Services made
available to Customer shall be in substantial conformity with the User Manuals,
as amended from time to time, copies of which have been, or will be, provided
to Customer.
c. Property Rights. M&I has the right to provide the
Services hereunder, using all computer software required for that purpose.
d. Organization and Approvals. M&I is a validly
organized corporate entity with valid authority to enter into this Agreement.
This Agreement has been duly authorized by all necessary corporate action.
e. Disclaimer of Warranties. EXCEPT AS DESCRIBED IN
THIS AGREEMENT, M&I DISCLAIMS ALL OTHER WARRANTIES, WHETHER WRITTEN, ORAL,
EXPRESSED OR IMPLIED INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
19. FORCE MAJEURE. M&I shall not be liable to Customer if M&I's
fulfillment or performance of any terms or provisions of this Agreement is
delayed or prevented by revolution or other civil disorders, wars, acts of
enemies, strikes, electrical equipment or availability failure, labor disputes,
fires, floods, acts of God, federal, state, or municipal action, statute,
ordinance or regulation, or, without limiting the foregoing, any other causes
not within its reasonable control, and which by the exercise of reasonable
diligence it is unable to prevent, whether of the class of causes hereinbefore
enumerated or not.
20. IRS FILING. Customer has complied with all laws, regulations,
procedures, and requirements in attempting to secure correct tax identification
numbers (TINs) for Customer's payees and agrees to attest to this compliance by
an affidavit provided annually. Customer authorizes M&I to act as Customer's
agent and sign on Customer's behalf the Affidavit required by the Internal
Revenue Service on Form 4804, or any successor form. Customer acknowledges
that M&I's execution of the Form 4804 Affidavit on Customer's behalf does not
relieve Customer of responsibility to provide accurate TINs or liability for
any penalties which may be assessed for failure to comply with TIN
requirements. Customer agrees to hold M&I harmless from any liabilities,
claims, expenses, penalties, or damages (including attorneys' fees) which may
be assessed or incurred as a result of the failure to comply with TIN
requirements.
21. CONTRACT BUYOUT.
a. Customer may terminate this Agreement at any time by
giving M&I at least one hundred eighty (180) days' prior written notice and
paying M&I sixty percent (60%) of the total estimated remaining unpaid monthly
processing fees. For the purpose of this computation, total estimated
remaining unpaid monthly processing fees shall be equal to the mean average of
the total monthly fees paid in the three (3) months preceding the termination
notice, multiplied by the number of months remaining in the Agreement.
b. The contract buyout amount set forth above shall be
paid prior to the deconversion of any affected accounts. The contract buyout
amount shall be paid by Customer regardless of the form by which the
termination occurs, including but not limited to, sale of assets or stock,
assumption of liabilities, merger, consolidation, absorption, liquidation, or
termination as a result of an Event of Default on the part of Customer (as
described in Section 11 of this Agreement).
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22. EXPENSE REIMBURSEMENTS. Customer agrees to reimburse M&I for
all conversion-related and out-of-pocket expenses (travel, lodging, meals, long
distance telephone calls, and printing and copying charges) reasonably incurred
in connection with the conversion of Customer's accounts to the M&I system.
The reimbursement of such expenses is in addition to conversion charges which
may arise after the conversion, or with respect to accounts which are not
currently customer accounts which are to be converted to the M&I system. M&I
shall estimate such expenses in advance, and Customer shall pay such expenses
upon execution of this Agreement. M&I shall provide Customer with a summary
invoice of actual expenses, and any adjustments shall be paid upon delivery of
the invoice.
23. CONVERSION OBLIGATIONS. Both parties agree to make a good
faith effort to convert Customer's data in a timely fashion and to perform the
conversion in accordance with the responsibilities set forth in the M&I
Conversion Manual, the Conversion Schedule, and this Agreement. Customer
agrees to maintain an adequate staff of persons who are knowledgeable with the
systems currently used by Customer to process data. Customer further agrees to
provide such Services and perform such obligations as are contemplated by the
M&I Conversion Manual and the Conversion Schedule, and as necessary for
Customer to timely and adequately perform its obligations herein and therein.
Customer shall pay or reimburse M&I for all out-of-pocket expenses and on a
time-and-materials basis for any of its personnel, or any independent
contractors, who perform conversion or related services (including items
identified as Customer Responsibilities in the Conversion Manual) for Customer.
Customer further agrees to cooperate fully with all reasonable requests of M&I
necessary to effect the conversion in a timely and efficient manner. Customer
agrees to reimburse M&I for all conversion charges whether for the initial
conversion, or for the subsequent conversion of additional accounts as they are
incurred or for the conversion of products not identified in the Proposal.
24. USE OF THE SERVICES. (a) Customer assumes exclusive
responsibility for the consequences of any instructions Customer may give M&I,
for Customer's failure to properly access the Services in the manner prescribed
by M&I, and for Customer's failure to supply accurate input information; (b)
Customer agrees that it will use the Services in accordance with such
reasonable policies as may be established by M&I from time to time as set forth
in any materials furnished by M&I to Customer; (c) Customer agrees that, except
as otherwise permitted by M&I, Customer will use the Services only for its own
internal business purposes and will not sell or otherwise provide, directly or
indirectly, any of the Services or any portion thereof to any third party; and
(d) Customer agrees and represents that (1) this Agreement has been approved by
its board of directors, or that the officer executing this Agreement has been
specifically authorized by Customer's board of directors to execute this
Agreement, (2) the performance of this Agreement by the Customer will not
affect the safety or soundness of the Customer or any of its affiliates, and
(3) this Agreement, and the obligations evidenced hereby, will be properly
reflected on the books and records of the Customer, and the Customer will
provide evidence of the same to M&I upon request.
25. MISCELLANEOUS.
a. Governing Law. This Agreement shall be construed and
governed by the laws of the state of Wisconsin.
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b. Amendment. This Agreement, including the Schedules
hereto, may be amended only by an instrument in writing executed by the parties
or their permitted assignees.
c. Assignment. This Agreement may not be assigned by
either party without the prior written consent of the other party, which such
consent shall not be unreasonably withheld, provided that M&I may freely assign
this Agreement to any company that is directly or indirectly (1) in control of
M&I, (2) under the control of M&I, or (3) under common control with M&I.
d. Section Headings. Section headings are for reference
purposes only and shall not affect the interpretation or meaning of this
Agreement.
e. Notices. All communications or notices required or
permitted by this Agreement shall be in writing and shall be deemed to have
been given at the earlier of the date when actually delivered to an officer of
a party or when deposited in the United States mail, certified or registered
mail, postage prepaid, return receipt requested, and addressed as set forth on
the signature page, unless and until any of such parties notifies the others.
f. No Waiver of Performance. Failure by either party at
any time to require performance by the other party to claim a breach of any
provision of this Agreement will not be construed as a waiver of any right
accruing under this Agreement, nor affect any subsequent breach, nor affect the
effectiveness of this Agreement or any part hereof, nor prejudice either party
as regards any subsequent action.
g. Entire Agreement; Conflicting Provisions. This
Agreement, together with the Schedules hereto, constitutes the entire agreement
between the Customer and M&I with respect to the subject matter hereof. There
are no restrictions, promises, warranties, covenants, or undertakings other
than those expressly set forth herein and therein. This Agreement supersedes
all prior negotiations, agreements, and undertakings between the parties with
respect to such subject matter. In the event of any conflict between the terms
of the main body of this Agreement and any of the Schedules hereto, the terms
of the main body of this Agreement shall govern.
h. Execution in Counterparts. This Agreement may be
executed simultaneously in any number of counterparts, each of which shall be
deemed an original but all of which shall together constitute one and the same
Agreement.
i. Enforceability. The invalidity or enforceability of
any provision hereof shall not affect or impair any other provisions.
j. Scope of Agreement. If the scope of any of the
provisions of the Agreement is too broad in any respect whatsoever to permit
enforcement to its full extent, then such provisions shall be enforced to the
maximum extent permitted by law and the parties hereto consent and agree that
such scope may be judicially modified accordingly and that the whole of such
provisions of this Agreement shall not thereby fail, but that the scope of such
provisions shall be curtailed only to the extent necessary to conform to law.
k. Confidentiality of Terms. Customer agrees that
neither it, its directors, officers, employees, or agents will disclose this
Agreement, or any of the terms or provisions of this Agreement, to any other
party.
11
12
l. De Novo Institution. In the event Customer fails to
obtain a charter for a Financial Institution by October 1, 1996, this Agreement
shall be automatically null and void ab initio, and neither party shall have
any liability to the other hereunder.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in their names as of the date first above written.
M&I DATA SERVICES, A DIVISION OF THE
MARSHALL & ILSLEY CORPORATION
("M&I")
4900 West Brown Deer Road
Brown Deer, WI 53223-0528
By: Patrick C. Foy
--------------
Name: Patrick C. Foy
Title: President, Outsourcing
Business Group
By: Thomas R. Mezera
----------------
Name: Thomas R. Mezera
Title: Vice President
COMMUNITY CENTRAL BANK ("CUSTOMER")
100 North Main Street
P.O. Box 7
Mount Clemens, MI 48046-0007
By: Richard Miller
--------------
Name: Richard Miller
Title: President
12
13
AUTHORIZATION AGREEMENT
The undersigned ("Customer") hereby authorizes M&I Data Services, a
division of the Marshall & Ilsley Corporation, ("M&I") to initiate debit
entries and to initiate, if necessary, credit entries and adjustments for any
excess debit entries or debit entries made in error, to Customer's account
indicated below and the depository named below, to debit and/or credit the same
such account.
This authority is to remain in full force and effect for the period coinciding
with the term (and any renewals thereof) of the Data Processing Services
Agreement made the _____ day of _____________ 1996, and any addenda thereto
(the "Agreement"), pursuant to the terms and conditions specified in the
Agreement.
DEPOSITORY NAME:
--------------------------------
ADDRESS:
--------------------------------
CITY/STATE/ZIP:
--------------------------------
TELEPHONE NUMBER:
--------------------------------
ROUTING TRANSIT NUMBER:
--------------------------------
ACCOUNT NUMBER:
--------------------------------
M&I DATA SERVICES, A DIVISION OF THE
MARSHALL & ILSLEY CORPORATION
("M&I")
4900 West Brown Deer Road
Brown Deer, WI 53223-0528
By: Patrick C. Foy
----------------
Name: Patrick C. Foy
Title: President, Outsourcing Business Group
By: Thomas R. Mezera
----------------
Name: Thomas R. Mezera
Title: Vice President
COMMUNITY CENTRAL BANK ("CUSTOMER")
100 North Main Street
P.O. Box 7
Mount Clemens, MI 48046-0007
By: Richard Miller
----------------
Name: Richard Miller
Title: President
14
ATTORNEY-IN-FACT APPOINTMENT
Customer hereby appoints M&I Data Services, a division of the Marshall
& Ilsley Corporation ("M&I") as: (1) customer's attorney-in-fact and empowers
M&I to authorize the Internal Revenue Service (IRS) to release information
return documents supplied to the IRS by M&I to states which participate in the
"Combined Federal/State Program"; and (2) Customer's agent to sign on
Customer's behalf the Affidavit required by the Internal Revenue Service on
Form 4804, or any successor form. Customer agrees to hold M&I harmless from
any liabilities, claims, expenses, penalties, or damages (including attorneys'
fees) which may be assessed or incurred as a result of the release of
information.
COMMUNITY CENTRAL BANK ("CUSTOMER")
By: Richard J. Miller
---------------------------
15
AFFIDAVIT
STATE OF Michigan )
) SS.
COUNTY OF Macomb )
I, Richard J. Miller, being first duly sworn, on oath, depose
Customer's Representative
and say:
1. I am an employee of Community Central Bank. I have personal
knowledge of my employer's practices with regard to procuring and reporting
tax identification numbers (TINs) and authority to execute this Affidavit on my
employer's behalf.
2. Community Central Bank has complied with all laws,
regulations, procedures, and requirements in attempting to secure correct TINs
for its payees. This compliance has been pursued with due diligence, and any
failure to secure correct TINs is due to reasonable cause.
Richard J. Miller
-----------------
Customer's Representative
Subscribed and sworn to before me
this 5th day of June, 1996.
M. Dianne Ambrozy
- ---------------
M. Dianne Ambrozy Notary Public
My Commission expires: 2-25-2000
16
STATE OF MICHIGAN
DEPARTMENT OF STATE
CANDICE S. MILLER
SECRETARY OF STATE
TO ALL TO WHOM THESE PRESENTS SHALL COME, GREETING:
IN THE NAME AND BY THE AUTHORITY OF THE PEOPLE OF THE STATE OF MICHIGAN, I
DO APPOINT
M. DIANNE AMBROZY, NOTARY PUBLIC, FOR THE COUNTY OF MACOMB
IN SAID STATE OF MICHIGAN, TO EXECUTE THE DUTIES OF AND HOLD SAID OFFICE FROM
THIS DATE HEREOF.
IN TESTIMONY WHEREOF, I HAVE HEREUNTO SET MY HAND, AND CAUSED
THE GREAT SEAL OF THE STATE TO BE AFFIXED AT LANSING, THIS
[SEAL] TWENTY-SECOND DAY OF JUNE IN THE YEAR
OF OUR LORD ONE THOUSAND NINE HUNDRED AND NINETY-FIVE.
Candice S. Miller
SECRETARY OF STATE
THIS COMMISSION EXPIRES FEBRUARY 25, 2000
17
SCHEDULE
M&I ON-LINE AVAILABILITY
The following is a list of standard hours of availability by each on-line
service. All times are CST/CDT.
Cardholder
(CRT Maintenance)
Monday - Thursday 7:00 a.m. - 6:45 p.m.
Friday 7:00 a.m. - 9:30 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
CIS & Deposit System
(Maintenance and Dollar Transactions)
Monday - Thursday 7:00 a.m. - 6:45 p.m. *
Friday 7:00 a.m. - 9:30 p.m. *
Saturday 7:00 a.m. - 4:30 p.m.
Data Entry
(Account Reconciliation System)
Monday - Friday 7:00 a.m.-10:00 p.m.
Data Entry
(Financial Control)
Monday - Thursday 7:00 a.m. - 11:00 p.m.
Friday 7:00 a.m. - 12:00 Midnight
Saturday 7:00 a.m. - 4:30 p.m.
Decision Management System
Monday-Thursday 7:00 a.m. - 6: 45 p.m.
Friday 7:00 a.m. - 9: 30 p.m.
Saturday 7:00 a.m. - 4: 30 p.m.
Data Entry
Monday-Friday 7:00 a.m. - 5:00 p.m.
Financial Control On-line
Monday-Friday 7:00 a.m. - 8:00 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
18
Loan System
(CRT Maintenance)
Monday-Thursday 7:00 a.m. - 6:15 p.m.
Friday 7 00 a.m. - 8:30 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
Management Information Service
Monday-Thursday 7:00 a.m. - 6:45 p.m.
Friday 7:00 a.m. - 9:30 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
(Except Money Market Info.)
Teller Terminals
Monday-Thursday 7:00 a.m. - 7:00 p.m.
Friday 7:00 a.m. - 9:30 p.m.
Saturday 7:00 a.m. - 4:30 p.m.
* CIS access to loan data is based on Loan System hours of availability. West
Coast availability for CIS, Loans, and Deposits for Monday-Friday is 8:00
a.m.-10:00 p.m., CST/CDT.
19
EXHIBIT A
20
FINANCIAL SERVICE PRODUCTS
- - Deposit Services
- - Loan Services
- - Teller/Platform Services
- - Automated Funds Transfer
- - Automated Clearinghouse
- - Corporate Cash Management Services
- - Customer Information System
- - Financial Control
- - Tickler System
- - Management Information Service
- - IRS Reporting
- - INFO Center
- - EFT Services
- - Safe Deposit System
- - Item Processing
- - Remote Site Support
- - Trust Services
- - Audit Services
21
EXHIBIT B
22
EXHIBIT B
I. The Minimum Monthly Fee as defined in Section 2(a) of the Agreement
shall be determined according to the following Schedule:
Months Minimum Monthly Fee
------- -------------------
1 - 12 $5,000
13 - 24 $6,000
25 - 36 $7,000
37 - 48 $8,000
49 - 60 $9,000
61 - 72 $10,000
73 - 84 $11,000
85 and thereafter $12,000
II. Customer shall pay M&I the following estimated one-time
conversion-related fees as provided for in Section 22:
Conversion Programming, Product Support, Training $ 35,000
Conversion Travel 5,000
Telecommunications Equipment, Installation 5,000
Salespartner Software (4 copies)* 11,900
PCTeller Software (12 copies)* 12,000
Software Customization* 50,000
Technical Services* 25,100
--------
$144,000
*A separate License must be executed.
23
EXHIBIT C
24
1996 PRODUCT PRICE LIST
STATEMENT OF CONFIDENTIALITY
The price list is intended for the exclusive use of M&I Data Services and its
customers. Due to the confidential nature of this document, no other
distribution or usage is permited.
25
The Company has omitted here the text of Exhibit C, the 1996
Product Price List, and filed it separately with the Securities and Exchange
Commission, together with a request that it be given confidential treatment.